Will a Minor Possession Charge Show Up on a Job Applicant’s Background Check?

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Oct 5, 2015

Employers naturally have a lot invested in the hiring process for their company. They want to make sure they select the very best employee whenever possible.

This of course means ensuring that the person brought in to fill the vacancy is the right fit for the culture of your company, and also does not pose any risk to your business or other employees. This is why it is crucial to understand what is involved in the criminal background check process.

Your business invests time and money every time it screens a potential employee, so it is good to understand the possible results of a background check.

Employers commonly wonder if minor infractions will be found and if so, how they should factor into the hiring decision. One of the more common infractions background screening companies find are minor marijuana possession convictions.

The short answer is that such convictions generally will show up when conducting a county criminal record search, but this isn’t a hard and fast rule.

The best method to identify convictions for marijuana possession is no different than that which you would use to find any criminal record; simply search the county court(s) where a person has lived, worked or attended school.

Why wouldn’t a possession conviction show up?

There are a few reasons why a marijuana possession might not show up. If the record is treated as a minor infraction and is dealt with administratively by a local court, chances are, that record will not appear on a typical Felony/Misdemeanor criminal background check.

Beyond that, many courts around the country allow low level convictions such as marijuana possession to be sealed or expunged if the person meets certain conditions. If this happens properly, the record is effectively erased from the court’s searchable public records and cannot be found.

There are also some areas where low level marijuana offenses cannot, by law, be reported. If you are conducting background checks in California, for instance, you cannot use these types of records to deny employment if the person was entered into a post trial diversion program.

Don’t forget about door #3

There is another possibility employers should consider if a minor possession charge is revealed on a National Criminal Database search. Remember, that such databases are fraught with holes and often incomplete.

Regardless of the record found on a national search, it should always be verified in the jurisdiction where the record originated. This is especially true with minor convictions where there is a possibility that the record was expunged or sealed.

If the national database isn’t regularly updated, there is a good chance that it wouldn’t have removed that conviction from their records.

What should you do?

Unfortunately, there’s never a good answer to this question. Every employer is different and for that matter, every job comes with a unique set of responsibilities.

Before making a hiring determination, you’ll want to consider how long ago the offense occurred, whether the candidate is a repeat offender and how the offense relates to the job being sought. You also need to consider if there are any industry regulations that might apply.

For instance, if the person is applying to be a pilot, that conviction could preclude you from hiring them, whereas the same conviction might be immaterial for someone applying to be an accountant.

As always, remember to follow proper adverse action procedures if you ultimately decide not to hire the person due to outcome of the background check.

This was originally published on the EmployeeScreen IQ blogEmployeeScreen IQ is not a law firm, and the contents of this article are not intended to be a substitute for legal advice.

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